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Boycott Calls Against Israel
Anti-boycott Legislation in Congress: Israel, the Academy and Free Speech
13.03.14
Editorial Note
 
IAM is dedicated to publishing occasional updates on the Israel boycott initiatives on campus.
Following the much publicized decision of the American Studies Association to boycott the Israeli academy, an anti-anti boycott backlash followed.
 
As reported earlier, some analysts, including Michael Oren, the former Israeli ambassador in Washington, now a professor at the IDC Herzliya, advocated for anti-boycott legislation in Congress.  
The Congress responded with the Roskam-Lapinski initiative detailed below.  The proposed legislation has generated a robust debate on boycott and academic freedom.  
 
The hearings on the proposed bill serve as a platform for a much wider debate on the topic.   

IAM will hold a roundtable on the subject of academic BDS on May 14, at Tel Aviv University.
Kenneth L. Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law, who plays a leading role in the anti-BDS movement in the United States, will keynote the event.  


 
The Louis D. Brandeis Center for Human Rights Under Law


First Amendment Experts Debate Anti-BDS Bill

Eugene Volokh

Eugene Volokh

Can Congress withhold funds from universities that adopt anti-Israel boycott, divestment and sanctions (BDS) policies?  Two widely respected First Amendment experts disagree.  Floyd Abrams, a leading First Amendment practitioner, argues that the new Roskam-Lapinski Bill is unconstitutional.  Eugene Volokh, a leading First Amendment scholar at UCLA, disagrees.

Readers of the Brandeis Center Blog will remember that Representatives Roskam and Lapinksi’s newly introduced bill, HR4009, and provides, part that:

Notwithstanding any other provision of law, an institution of higher education shall not be eligible to receive funds or any other form of financial assistance under this Act [not including student aid funds] if the Secretary determines that such institution is participating in a boycott of Israeli academic institutions or scholars….

For purposes of this section, the Secretary shall consider an institution of higher education to be participating in a boycott of Israeli academic institutions or scholars if the institution, any significant part of the institution, or any organization significantly funded by the institution adopts a policy or resolution, issues a statement, or otherwise formally establishes the restriction of discourse, cooperation, exchange, or any other involvement with academic institutions or scholars on the basis of the connection of such institutions or such scholars to the State of Israel.

Floyd Abrams

Floyd Abrams

Mr. Abrams has reportedly argued that Roskam-Lapkinski would be unconstitutional:

The notion that the power to fund colleges and their faculties may be transformed into a tool to punish them for engaging in constitutionally protected expression is contrary to any notion of academic freedom and to core First Amendment principles…. I believe that academic boycotts are themselves contrary to principles of academic freedom but that does not make the legislation being considered any more tolerable or constitutional.

Volokh disagrees, arguing that the bill is likely constitutional.  His arguments, posted at the Volokho conspiracy at WashingtonPost.com, include the following:

1. Most important, the bill doesn’t restrict university speech based on content or viewpoint — a university doesn’t lose money just for condemning Israel or even praising a boycott, but only for actually boycotting Israel: refusing to deal with Israeli institutions or scholars….

2. Now the bill may affect a university’s speech decisions. A university department’s choice of speakers for a conference, for instance, is a decision about what speech to present, and is thus potentially protected by the First Amendment: It constitutes exercise of the university’s freedom of speech, and the related right of freedom of expressive association, which is triggered by association restrictions or association mandates that “affect[ a] group’s ability to express its message.” … If the government made it a crime for universities to refuse to invite Israeli speakers, that might well be unconstitutional.

But the question is whether the government can say, “if you take our money, you can’t discriminate against people or institutions because they are connected to Israel.” (Note that the bill would be narrower than an anti-discrimination provision, because it bans only outright boycotts, and not all discrimination, but it’s comparable enough to an anti-discrimination rule that I’ll treat it similarly.) And as to such questions, the Court has generally said yes….

Now one possible objection is that this bill would just ban boycotts of Israeli institutions and scholars and not (say) Chinese, Burmese, or North Korean institutions and scholars. But while that might make the law country-based, it doesn’t make the law into a restriction on speech based on the viewpoint of the university’s speech. The university can still say whatever it wants to say; it just can’t discriminate against people and institutions from one particular American ally….

4. There is one potentially more serious problem with the bill: It would strip federal funds from the entire institution even when a boycott is conducted just by one department. A university’s medical school, for instance, would lose federal funds just because the sociology department conducts a boycott. Opponents of the law could argue that this is barred by the Supreme Court’s decision in FCC v. League of Women Voters(1984) (reaffirmed by Agency for International Development v. Alliance for Open Society International (2013)).

In League of Women Voters, the government in effect provided that public broadcasters would lose all federal funds if they ran their own editorials. The Court said this was unconstitutional. Congress could refuse to allow its subsidies to be used for such editorials. But Congress couldn’t strip the station of funds because it used other, non-federal funds to editorialize.

But League of Women Voters stressed that the condition restricted speech, and restricted it based on content: The law “is specifically directed at a form of speech — namely, the expression of editorial opinion — that lies at the heart of First Amendment protection.” “[T]he scope of [the restriction] is defined solely on the basis of the content of the suppressed speech.” As I mentioned above, the condition here restricts conduct (exclusion of Israeli academic institutions and scholars) that sometimes won’t even involve speech (for instance, if a university refuses to allow Israeli academic institutions to license university-owned patents, or refuses to let them interview students at on-campus job fairs). And in any event, it doesn’t restrict speech because of its content. Likewise, the condition doesn’t require people “to profess a specific belief,” the Court’s objection in Alliance for Open Society International.

Indeed, though Grove City College interpreted Title IX as denying federal funds only to those university programs that discriminate — rather than to the entire university — Congress has since revised Title IX. If a university discriminates in any of its programs, it will now lose federal funding for all its programs. I doubt that courts would say that this poses a First Amendment problem, when the lose-funding-for-those-programs-that-discriminate ban didn’t.

5. Some might ask whether the bill would strip universities of funds if they pay their professors’ membership fees in the American Studies Association (or other groups that boycott Israeli academics or institutions), or if they pay for conference registration fees. I think the answer would be no, because the bill specifically only when “the institution, any significant part of the institution, or any organization significantly funded by the institution” engages in a boycott. The word “significantly” means something, and I think it means more than just paying modest fees such as these….

Interestingly, some Jewish organizations are now vocally opposing the statute.  In some cases, they may base their opposition on Floyd Abrams-arguments of the sort that Eugene Volokh has disputed.  In other cases, they may be concerned that Roskam-Lapinki is being used as a Republican effort to embarrass Democrats for being soft on anti-Israel discrimination.  Either way, this bill will be hotly debated.  Stay tuned…

===========================================


February 17, 2014 12:25 pm 

Author:      Kenneth L Marcus

The backlash continues against the anti-Israel boycott resolution that the American Studies Association adopted last month. Over 200 university presidents have distanced themselves from it. Numerous other organizations, including the American Association of University Professors, have condemned it too. Some critics argue that it violates academic freedom. Others go further, observing that the movement to boycott, divest from and sanction (BDS) Israel amounts to discrimination against the Jewish state. Now legislators are joining the burgeoning anti-BDS movement, introducing bills to curb anti-Israel abuse. The first few efforts out of the box may be imperfect vehicles, but they have begun a necessary conversation about how public policy can best address the misuse of taxpayer funds to support BDS.

On February 6, Congressmen Peter Roskam (R-IL) and Dan Lipinski (D-IL) introduced the “Protect Academic Freedom Act” (H.R. 4009), which would ban federally funded universities from boycotting Israeli academic institutions or scholars. As they introduced the bill, the congressmen denounced the bigotry surrounding the boycott, divestment and sanctions (BDS) movement, as well as the threat which anti-Israel activists pose to academic freedom.

Representative Roskam had been justly lauded for his co-authorship of a January letter, signed by 134 members of Congress, to “strongly condemn” the American Studies Association (ASA) for its recent endorsement of the academic boycott against Israel.  “While ASA has every right to express its views on policies pursued by any nation or government,” the congressmen wrote, “we believe that the decision to blacklist Israeli academic institutions for Israeli government policies with which ASA disagrees demonstrates a blatant disregard for academic freedom.” In addition, the congressmen complained that the ASA’s boycott resolution “exhibits flagrant prejudice against the Jewish State of Israel.”

While Rep. Roskam’s letter was well received, reaction to the new Roskam-Lipinski bill has been more mixed. AIPAC officials have been quoted as saying that they are “reviewing the text.” The Anti-Defamation League’s Abraham Foxman has praised the purposes of the legislation but    conceded that he’s “not sure that this bill would be the most effective means of recourse.” On the other hand, several other groups support the legislation, including the Simon Wiesenthal Center, Christians United For Israel, and The Israel Project. Ambassador Michael Oren has been an effusive supporter, arguing that Roskam-Lipinski “can be the turning point in the struggle against the delegitimization of the Jewish State.”

Some groups have worried that the bill would infringe on universities’ freedom of speech. Just days before Roskam and Lipinki introduced their bill, New York assemblymen pulled a similar state bill. The New York bill, which has passed the state senate, faced opposition from civil liberties groups who argued that it violates freedom of speech. But the New York bill has subsequently been reintroduced, with softer language, and similar bills are now under consideration in other statehouses. More recently, Professor Eugene Volokh, widely respected First Amendment expert at UCLA School of Law, has largely put free speech concerns to rest. As Volokh notes, Roskam-Lipinski would not impose content- or viewpoint-restrictions on any university and is narrower than existing federal anti-discrimination laws.

In fact, the main problem with the Roskam-Lipinsky bill is not that it goes too far but rather that it does not go far enough. An effective anti-BDS law must accomplish three things. The first goal, which Roskam-Lipinski satisfies, is that it must prevent taxpayer funds from supporting anti-Israel boycotts. The point is not to prevent individuals from expressing their views    but rather to prevent tax funds from being used to promote a boycott of one of America’s strongest allies. Roskam-Lipinski does so while upholding academic freedom and protecting against a resurgent form of anti-Israeli and anti-Semitic prejudice.

Second, an effective anti-boycott bill must address the “D” as well as the “B” in the BDS movement. That is to say, it must curb divestment as well as boycotts. Anti-Israel Boycotts are hardly the most dangerous aspect of the BDS movement. On American college campuses, anti-Israel activists are urging university administrators to Divest from Israeli companies, from companies that do business with Israel, or from companies that conduct business from the West Bank. An effective anti-boycott bill would prevent taxpayer funds from supporting divestments too. Roskam-Lipinksi does not do this but should.

Third, an effective anti-boycott bill must include effective enforcement mechanisms. American anti-discrimination law provides a strong tripartite approach to address most forms of discrimination: Justice department enforcement for the most serious violations, administrative remedies for run-of-the-mill cases, and private party lawsuits for when governmental agencies are unavailing.  Roskam-Lipinski, as currently drafted, provides only an administrative remedy. An effective anti-BDS bill should treat anti-Israel prejudice like other forms of bias and provide the same three enforcement approaches.

There is now tremendous energy going into the anti-BDS legislative efforts, and this is a good thing. Rather than simply supporting or opposing the initial legislative initiatives in their preliminary forms, those who care about fighting discrimination and upholding academic freedom should join this necessary dialogue about the proper role that legislatures can play. The ideal anti-BDS bill may not yet have been introduced, but the initial drafts have provoked a healthy conversation. For this, Representatives Roskam and Lipinski are owed a substantial debt of gratitude.

Kenneth L. Marcus is Founder and President of the Louis D. Brandeis Center (www.brandeiscenter.com), which combats anti-Semitism in higher education. He is also author of the newly issued LDB Best Practices Guide to Combating Campus Anti-Semitism and Anti-Israelism.                                                                                                                   

Antiboycott US Regulations


During the mid-1970's the United States adopted two laws that seek to counteract the participation of U.S. citizens in other nation's economic boycotts or embargoes. These "antiboycott" laws are the 1977 amendments to the Export Administration Act (EAA) and the Ribicoff Amendment to the 1976 Tax Reform Act (TRA), [which is found in Section 999 of the Internal Revenue Code].

Objectives:

The antiboycott laws were adopted to require U.S. firms to refuse to participate in foreign boycotts that the United States does not sanction. They have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy.

Primary impact:

The Arab League boycott of Israel is the principal foreign economic boycott that U.S. companies must be concerned with today. The antiboycott laws, however, apply to all boycotts that are unsanctioned by the United States.

Who is covered by the laws?

The antiboycott provisions of the Export Administration Regulations (EAR) apply to all "U.S. persons," defined to include individuals and companies located in the United States and their foreign affiliates. These persons are subject to the law when their activities relate to the sale, purchase, or transfer of goods or services between the United States and a foreign country. This covers U.S. exports and imports, financing, forwarding and shipping, and certain other transactions that may take place wholly offshore.
Generally, the Tax Reform Act applies to all U.S. taxpayers (and their related companies). The TRA's reporting requirements apply to taxpayers' "operations" in, with, or related to boycotting countries or their nationals. Its penalties apply to those taxpayers with DISC (Domestic International Sales Corporation), FSC (Foreign Sales Corporation), foreign subsidiary deferral, and/or foreign tax credit benefits.

What do the laws prohibit?

Conduct that may be penalized under the TRA and/or prohibited under the EAR includes:
  • Agreements to refuse or actual refusals to do business with or in Israel or with blacklisted companies.
  • Agreements to discriminate or actual discrimination against other persons based on race, religion, sex, national origin or nationality.
  • Agreements to furnish or actually furnishing information about business relationships with or in Israel or with blacklisted companies.
  • Agreements to furnish or the actual furnishing of information about the race, religion, sex, or national origin of another person.
  • Furnishing information about business relationships with Israel or with blacklisted persons.
  • Implementing letters of credit containing prohibited boycott terms or conditions.

TRA does not "prohibit" conduct, but denies tax benefits ("penalizes") for certain types of boycott- related agreements.

What must be reported?

The EAR requires U.S. persons to report quarterly any requests they have received to take any action to comply with, further, or support an unsanctioned foreign boycott.
The TRA requires taxpayers to report "operations" in, with, or related to a boycotting country or its nationals and requests received to participate in or cooperate with an international boycott. The Treasury Department publishes a quarterly list of "boycotting countries."

How to report:

EAR reports are filed quarterly on form BXA 621-P, available from the Commerce Department's International Trade Administration and Bureau of Export Administration field offices or from the Office of Antiboycott Compliance in Washington, D.C.
TRA reports are filed with tax returns on IRS Form 5713. This form is available from local IRS offices.

Penalties:

Violations of the antiboycott provisions of the EAR carry the same penalties as those for export control violations. These can include:
 Criminal:
  • "knowing violators": The penalties for each such violation can be a fine of up to $50,000 or five times the value of the exports involved, which ever is greater, may be imposed in addition to imprisonment of up to five years.
  • "Willful violators": The penalties for each violation -- where the violator has knowledge that the items will be used for the benefit of, or that the destination or intended destination of the items, is any country to which exports are restricted for national security or foreign policy purposes -- for individuals is a fine of up to $250,000, imprisonment for up to ten years, or both. For firms the penalties for each violation can be $1 million or up to five times the value of the exports involved, whichever is greater.
 Administrative:
  • For each violation of the EAR any or all of the following may be imposed:
  • Revocation of validated export licenses;
  • The general denial of export privileges;
  • The exclusion from practice; and/or
  • The imposition of fines of up to $10,000 per violation, or $100,000 where the violation of national security export controls are involved.
    The maximum civil penalty allowed by law during periods where the regulations are continued in effect by an Executive Order pursuant to the International Economic Emergency Powers Act (IEEPA) is $10,000 per violation.
    Violations of the TRA involve the denial of all or part of the foreign tax benefits discussed above.




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